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Judgment
The petitioners have filed this writ petition invoking jurisdiction under Article 226 of the Constitution of India for setting aside order dated 09.01.2018
(Annexure-18) contained in Memo No. 165 passed by Principal Secretary, Department of Home whereby and whereunder the order of dismissal
dated 16.09.2019 (Annexure-11) and order dated 23.09.2010(Annexure 12) has been found true irrespective of the fact that the petitioner has moved
this Hon’ble Court in W.P.(S) No. 3741 of 2011 by challenging the order dated 16.09.2010 and order dated 23.09.2010 and the Hon’ble Court
vide its judgment dated 16.06.2016 has been pleased to set aside the order dated 16.09.2010 and 23.09.2010 holding that above mentioned were not
legally sustainable and as such quashed the orders and remanded the matter to the respondents authorties to consider the matter afresh on the
question of quantum of punishment.
Referring to Annexure-18 of the writ petition, it has been submitted by the learned counsel for the petitioner that the respondent authorities has passed
an order dated 09.01.2018 whereby and whereunder the respondent authorities has found the order dated 16.09.2010 to be true and terminated the
petitioner irrespective to the fact that the same order was already quashed by this Hon’ble Court.
It has been submitted by the learned counsel for the petitioner the petitioner being aggrieved, approached this Hon’ble Court by way of an writ
petition being W.P.(S) N. 3741 of 2011 and the Hon’ble Court after hearing the parties has been pleased to quash the order 16.09.2010 and
23.09.2010 respectively and remitted the matter to the respondent authorities to consider the matter fresh on the point of quantum of punishment. Para
7 & 8 of the order dated 16.09.2016 passed in W.P.(S) N. 3741 of 2011 is quoted below:
“7. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the
petitioner has been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow:-
(i). The basis of departmental proceeding was a criminal case and the petitioners have been honourably acquitted in the said case, as case of ‘no
evidence’.
(ii). The Enquiry Report is perverse since the enquiry report is full of procedural illegalities as the provisions of Rule 184 and 185 of the Jail Manual
has not been appreciated.
(iii). 36 years of unblemished service career of the petitioners was not taken into consideration and taking into consideration his past services, lesser
punishment could have been imposed.
(iv). The impugned order of punishment is not commensurate with the proved misconduct and grossly disproportionate to the alleged charges.
…………………………………………………………..
(v). Petitioners’ defence/show cause reply was not taken into consideration.
(vi). In respect of petitioners , Superintendent of Central Jail is the disciplinary authority, being the appointing authority which is evident from Rule 176
and 177 corresponding to Rule 62 and 268 of the Jail Manual and Inspector General (Prison) is the appellate authority as stated in Rule 191 of the Jail
Manual but in case of petitioners, order of dismissal has not been passed by the Disciplinary Authority, and thus, the petitioners were deprived from
their substantive right to prefer an appeal as per Rule 192 of the Jail Manual.
………………………………………………………………………………..â€
On cumulative effect of the facts, reasons and judicial pronouncements, the impugned order of punishment of dismissal dated 16.09.2010 and the
order/letter dated 23.09.2010 passed by Appellate Authority being not legally sustainable are hereby quashed and set aside and the matter is remitted
back to the concerned authority of the respondents to consider the matter afresh on the question of quantum of punishment, in accordance with law
and the respondent authority shall do well to reconsider the case of the petitioner within a period of two months from the date of receipt/production of
a copy of this order.â€
In the latest judgment of the Hon’ble Supreme Court in the case of “Anuradha Bhasin Vs. Union of India and Ors†Writ Petition (Civil) NO.
1031 of 2019 with Writ Petition (Civil) No. 1164 of 2019 it has been held as under:
“47. The requirement of balancing various considerations brings us to the principle of proportionality. In the case of K. S. Puttaswamy (Privacy9J.)
(supra), this Court observed:
“310…Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the
encroachment on the right is not disproportionate to the purpose of the law...â€
Further, in the case of CPIO v Subhash Chandra Aggarwal, (2019) SCC OnLine SC 1459, the meaning of proportionality was explained as:
“225…It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary
to fulfil the legitimate interest of the countervailing interest in question…â€
At the same time, we need to note that when it comes to balancing national security with liberty, we need to be cautious. In the words of Lucia
Zedner7:
“Typically, conflicting interests are said to be ‘balanced’ as if there were a selfevident weighting of or priority among them. Yet rarely are
the particular interests spelt out, priorities made explicitly, or the process by which a weight is achieved made clear. Balancing is presented as a
zerosum game in which more of one necessarily means less of the other … Although beloved of constitutional lawyers and political theorists, the
experience of criminal justice is that balancing is a politically dangerous metaphor unless careful regard is given to what is at stake.â€
The proportionality principle, can be easily summarized by Lord Diplock’s aphorism ‘you must not use a steam hammer to crack a nut, if a
nutcracker would do?’ [refer to R v. Goldsmith, [1983] 1 WLR 151, 155 (Diplock J)]. In other words, proportionality is all about means and ends.
The suitability of proportionality analysis under Part III, needs to be observed herein. The nature of fundamental rights has been extensively
commented upon. One view is that the fundamental rights apply as ‘rules’, wherein they apply in an ‘allornothing fashion’. This view is
furthered by Ronald Dworkin, who argued in his theory that concept of a right implies its ability to trump over a public good.8 Dworkin’s view
necessarily means that the rights themselves are the end, which cannot be derogated as they represent the highest norm under the Constitution. This
would imply that if the legislature or executive act in a particular manner, in derogation of the right, with an object of achieving public good, they shall
be prohibited from doing so if the aforesaid action requires restriction of a right. However, while such an approach is often taken by American Courts,
the same may not be completely suitable in the Indian context, having regard to the structure of Part III which comes with inbuilt restrictions.
However, there is an alternative view, held by Robert Alexy, wherein the ‘fundamental rights’ are viewed as ‘principles’, 9 wherein
the rights are portrayed in a normative manner. Rules are norms that are always either fulfilled or not; whereas principles are norms which require
that something be realized to the greatest extent possible given the legal and factual possibilities.10 This characterisation of principles has implications
for how to deal with conflicts between them: it means that where they conflict, one principle has to be weighed against the other and a determination
has to be made as to which has greater weight in this context.11 Therefore, he argues that nature of principles implies the principle of proportionality.
The doctrine of proportionality is not foreign to the Indian Constitution, considering the use of the word ‘reasonable’ under Article 19 of the
Constitution. In a catena of judgments, this Court has held “reasonable restrictions†are indispensable for the realisation of freedoms enshrined
under Article 19, as they are what ensure that enjoyment of rights is not arbitrary or excessive, so as to affect public interest. This Court, while sitting
in a Constitution Bench in one of its earliest judgments in , Chintaman Rao v. State of Madhya PradeshAIR 1951 SC 11 8interpreted limitations on
personal liberty, and the balancing thereof, as follows:
“7. The phrase “reasonable restriction†connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of
an excessive nature, beyond what is required in the interests of the public. The word “reasonable†implies intelligent care and deliberation, that is,
the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of
reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause
(6) of Article 19, it must be held to be wanting in that quality.†(emphasis supplied)
This Court, in State of Madras v. V.G. Row, AIR 1952 SC 196, while laying down the test of reasonableness, held that:
… It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute
impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases.
The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to
be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict….(emphasis
supplied)
A Constitution Bench of this Court in Mohammed Faruk v. State of Madhya Pradesh, (1969) 1 SCC 853 while determining rights under Article 19(1)
(g) of the Constitution, discussed the doctrine of proportionality in the aforesaid terms:
“10. … The Court must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession,
attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest
sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen's freedom … the possibility of achieving the
object by imposing a less drastic restraint … or that a less drastic restriction may ensure the object intended to be achieved.†(emphasis supplied)
In the case of, Om Kumar v. Union of India (2001) 2 SCC 386 the principle of proportionality, in light of administrative orders, was explained as
follows:
By “proportionalityâ€, we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice
of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative
order, as the case maybe. Under the principle, the court will see that the legislature and the administrative authority “maintain a proper balance
between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind
the purpose which they were intended to serveâ€. The legislature and the administrative authority are, however, given an area of discretion or a range
of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality.
(emphasis supplied)
[See also ,State of Bihar v. Kamla Kant Misra (1969) 3 SCC 337; Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh, (1982) 1 SCC 39]
Recently, this Court in Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 35 3has held that no constitutional
right can be claimed to be absolute in a realm where rights are interconnected to each other, and limiting some rights in public interest might therefore
be justified. The Court held as follows:
“62. It is now almost accepted that there are no absolute constitutional rights. [Though, debate on this vexed issue still continues and some
constitutional experts claim that there are certain rights, albeit very few, which can still be treated as “absoluteâ€. Examples given are:(a) Right to
human dignity which is inviolable, (b) Right not to be subjected to torture or to inhuman or degrading treatment or punishment. Even in respect of such
rights, there is a thinking that in larger public interest, the extent of their protection can be diminished. However, so far such attempts of the States
have been thwarted by the judiciary.] … In fact, such a provision in Article 19 itself on the one hand guarantees some certain freedoms in clause (1)
of Article 19 and at the same time empowers the State to impose reasonable restrictions on those freedoms in public interest. This notion accepts the
modern constitutional theory that the constitutional rights are related. This relativity means that a constitutional licence to limit those rights is granted
where such a limitation will be justified to protect public interest or the rights of others. This phenomenonâ€"of both the right and its limitation in the
Constitutionâ€" exemplifies the inherent tension between democracy’s two fundamental elements...†(emphasis supplied)
In the aforesaid case, this Court was posed with a dilemma as to how to treat competing rights. The Court attempted to resolve the conflict by
holding that rights and limitations must be interpreted harmoniously so as to facilitate coexistence. This Court observed therein:
“62… On the one hand is the right’s element, which constitutes a fundamental component of substantive democracy; on the other hand is the
people element, limiting those very rights through their representatives. These two constitute a fundamental component of the notion of democracy,
though this time in its formal aspect. How can this tension be resolved? The answer is that this tension is not resolved by eliminating the “losingâ€
facet from the Constitution. Rather, the tension is resolved by way of a proper balancing of the competing principles. This is one of the expressions of
the multi-faceted nature of democracy. Indeed, the inherent tension between democracy’s different facets is a “constructive tensionâ€. It
enables each facet to develop while harmoniously coexisting with the others.
The best way to achieve this peaceful coexistence is through balancing between the competing interests. Such balancing enables each facet to
develop alongside the other facets, not in their place. This tension between the two fundamental aspectsâ€"rights on the one hand and its limitation on
the other handâ€"is to be resolved by balancing the two so that they harmoniously coexist with each other. This balancing is to be done keeping in
mind the relative social values of each competitive aspects when considered in proper context.†(emphasis supplied)
The next conundrum faced by the Court was in achieving the requisite balance, the solution for which was derived from the principle of
proportionality. The eminent constitutional jurist, Kai Möller states that the proportionality principle is the doctrinal tool which guides Judges through
the process of resolving these conflicts.13 One of the theories of proportionality widely relied upon by most theorists is the version developed by the
German Federal Constitutional Court. The aforesaid doctrine lays down a four pronged test wherein, first, it has to be analysed as to whether the
measure restricting the rights serves a legitimate goal (also called as legitimate goal test), then it has to be analysed whether the measure is a suitable
means of furthering this goal (the rational connection stage), next it has to be assessed whether there existed an equally effective but lesser restrictive
alternative remedy (the necessity test) and at last, it should be analysed if such a measure had a disproportionate impact on the rightholder (balancing
stage). One important feature of German test is the last stage of balancing, which determines the outcome as most of the important issues are pushed
to the balancing stage and the same thereby dominates the legal analysis. Under this approach, any goal which is legitimate will be accepted; as
usually a lesser restrictive measure might have the disadvantage of being less effective and even marginal contribution to the goal will suffice the
rational connection test.
The aforesaid test needs to be contrasted with its Canadian counterpart also known as the Oakes test. According to the said doctrine, the object of
the measure must be compelling enough to warrant overriding of the constitutionally guaranteed freedom; a rational nexus must exist between such a
measure and the object sought to be achieved; the means must be least restrictive; and lastly, there must be proportionality between the effects of
such measure and the object sought to be achieved. This doctrine of proportionality is elaborately propounded by Dickson, C.J., of the Supreme Court
of Canada in R. v. Oakes, (1986) 1 SCR 103 (Can) SC, in the following words (at p. 138):
“To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the
objective, which the measures, responsible for a limit on a Charter right or freedom are designed to serve, must be “of sufficient importance to
warrant overriding a constitutionally protected right or freedom†… Second … the party invoking Section 1 must show that the means chosen are
reasonable and demonstrably justified. This involves “a form of proportionality testâ€â€¦ Although the nature of the proportionality test will vary
depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There
are, in my view, three important components of a proportionality test. First, the measures adopted must be … rationally connected to the objective.
Second, the means … should impair “as little as possible†the right or freedom in question … Third, there must be a proportionality between the
effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient
importanceâ€... The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable
and demonstrably justified in a free and democratic society.†(emphasis supplied)
As can be seen, there exists substantial difference in both approaches, as the Oakes test, instead of requiring “any†legitimate goal, demands
the same to be compelling enough to warrant the limitation of constitutional rights. Additionally, while the German necessity test calls for a lesser
restrictive measure which is equivalently effective, the need for effectiveness has been done away with in the Oakes test wherein the requirement of
least infringing measure has been stipulated.
It is also imperative for us to place reliance on Aharon Barak’s seminal book15 on proportionality upon which Dr A.K. Sikri, J. placed reliance
while expounding the doctrine of proportionality in Modern Dental College case (supra) as follows:
“60. … a limitation of a constitutional right will be constitutionally permissible if:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose;
(iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser
degree of limitation; and finally
(iv) there needs to be a proper relation (“proportionality strictosensu†or “balancingâ€) between the importance of achieving the proper
purpose and the social importance of preventing the limitation on the constitutional right.†(emphasis supplied)
In Modern Dental College case (supra), this Court also went on to analyse that the principle of proportionality is inherently embedded in Indian
Constitution under the realm of the doctrine of reasonable restrictions and that the same can be traced under Article 19. The relevant extracts are
placed below:
“65. We may unhesitatingly remark that this doctrine of proportionality, explained hereinabove in brief, is enshrined in Article 19 itself when we
read clause (1) along with clause (6) thereof. While defining as to what constitutes a reasonable restriction, this Court in a plethora of judgments has
held that the expression “reasonable restriction†seeks to strike a balance between the freedom guaranteed by any of the subclauses of clause (1)
of Article 19 and the social control permitted by any of the clauses (2) to (6). It is held that the expression “reasonable†connotes that the
limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of
public. Further, in order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve, and must
not go in excess of that object (see P.P. Enterprises v. Union of India, (1982) 2 SCC 33). At the same time, reasonableness of a restriction has to be
determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon
whom the restrictions are imposed or upon abstract considerations (see Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731.)†(emphasis
supplied)
Thereafter, a comprehensive doctrine of proportionality in line with the German approach was propounded by this Court in the Modern Dental
College case (supra) wherein the Court held that:
“63. In this direction, the next question that arises is as to what criteria is to be adopted for a proper balance between the two facets viz. the rights
and limitations imposed upon it by a statute. Here comes the concept of “proportionalityâ€, which is a proper criterion. To put it pithily, when a law
limits a constitutional right, such a limitation is constitutional if it is proportional. The law imposing restrictions will be treated as proportional if it is
meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such measures
are necessary...
The exercise which, therefore, is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and
necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on
proportionality i.e. balancing of different interests.†(emphasis supplied).â€
Taking into account the facts of the aforesaid Judgment of the Hon’ble Supreme Court, the respondents have failed to consider case of the
petitioners as per order passed in W.P.(S) No. 3741 of 2011. Accordingly, this writ petition is allowed and the order dated 09.01.2018 (Annexure-18)
is hereby set-aside and the matter is remitted back to the concerned authority of the respondents to consider the matter afresh taking into
consideration the law laid down in the aforesaid judgement as quoted above, in accordance with law within a period of eight weeks from the date of
receipt/production of a copy of this order after noticing the petitioners.